I ask, becase the evolving Madoff Scandal seems to have hit a legal conundrum: Madoff’s “early investors” profited handsomely from his scam-they made lots of money.
As we know now, these “profits” were a scam-they were essentially, monies stolen from new investors, via fraud. The courts are trying to decide if these “profits” have to be returned to the investors that Madoff stole from.
Now we have an interesting case in Boston: several people (former Speaker of the MA House, Salvatore DiMasi, a former sales rep for Cognos Corp., another associate of DiMasi) are facing trial for illegal activities concerning state contracts for software purchased from Cognos. One of the group (sales rep/lobbyist for Cognos-a Mr. Lally) just decided to plead guilty to several charges (including conspiracy)-as part of a plea bargain, he will testify against DiMasi.
This Lally paid his defense lawyer with his own funds-which included a commission paid to him on the software,which was purchased under a rigged bidding system.
Hence, the state of Massachusetts paid more than it should-the cost included kickbacks to DiMasi and his associates (including Mr. Lally).
Now, if it can be proven that this Mr. Lally paid his defense attorney with funds illegally obtained (via his criminal activities)-should the lawyer be made to return this money?
At what point does stolen/embezzled money cease to be regarded as “dirty”-that is, subject to attachment?
Suppose you have a successful drug importer (a Mr. Vito Corleone)-who makes huge money via the importation and sale of illegal drugs. One day Mr. Corleone is arrested and charged. Mr. Corleone hires a lawyer to defend him in court-and is successful in keeping Corleone out of jail (plea bargaining). If his lawyer accepts money obtained through Corleone’s illegal rackets, can he be made to forfeit it?
I know nothing of various American laws, but it is my understanding that any firm of lawyers convinced their client is guilty routinely devotes all monies paid by that client to charity.
My concern is that lawyers would stop taking defense work if they knew that they may have to return their fees. Outside of big cases like this, most defense lawyers provide their services to small time criminals - and they usually need the right to counsel more than most. Since their trials are not subject to the scrutiny of the media or the review of the ACLU, there is generally much more prosecutorial misconduct, speedy plea bargains and the like.
Most of the lawyers who provide that level of service are not the big money lawyers, and if you threaten to put strings on it, they’ll walk away. Not necessarily because they’re greedy assholes, but because the task of tracing all funds with clients who are not the best record keepers would be a huge unpaid task, before you even get to the legal case.
What? Why would they do the work then? Presumably salaries still need to be paid?
Ultimately the lawyers didn’t do anything illegal by defending their clients, so why shouldn’t they get paid, regardless of where the funds came from? After all, the client’s legally innocent until a verdict of guilty is rendered, so until that point, the money’s likely assumed to be clean as well.
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The problem comes up a lot more in drug cases, where the defendant walks into your office with $20,000 cash. The IRS wants you to file a form. You think that violates your clients fifth and sixth amendment rights. As I recall, we filed a “John Doe” form with the IRS and they never pushed it. Of course, in drug cases there isn’t a victim who’s out the cash, so that might make a difference.
We use to make a motion to intervene in civil forfeiture cases to get seized cash (or other assets) released for our fees, arguing that our clients’ right to be represented by the attorney of their choice trumped the government’s right to hold on to allegedly illegal proceeds of a crime. I don’t recall being too successful at that, but, on the other hand, no one ever made us hand over money we earned as fees if the client did have the cash to pay us.
Not only lawyers, but bankers who made money off them, people who sold them cars, the kid on the corner that sold them lemonade, the Realtor that sold them a house, the telephone and cable companies, the supermarket where they bought their groceries, all of it needs to be given to charity.
Let me guess: you’ll be here all week, please tip the waitresses.
And then they deduct these ‘charitable contributions’ from their taxes, so it doesn’t really cost them any money. And the rest of us pay higher taxes to make up for their deductions.